43
PROCTOR | July 2015
How can evidence be used to achieve a positive outcome through mediation or litigation?
Andrew Moffat and John-Henry Eversgerd share their thoughts.
This article appears courtesy of the Queensland Law
Society Alternative Dispute Resolution Committee. It is
an edited version of an article first published in March
2015 in The Australian Corporate Lawyer.
I recommend in mediation not necessarily
providing all of your claim analysis up front.
If the quantum is significantly different from
what the other party expects or wants it has
the risk of putting them on the defensive
early. Strategically, consider beforehand
what would be most effective convincing
you if you were in their shoes. One strategy
is to focus initially on the independence and
expertise of the expert you have engaged
to perform the analysis.
Before jumping to the numbers, explain
what questions the specialist was asked to
objectively answer. This will paint a picture
of what the outcome might be from a court
judgment. In other words, demonstrate
what the cost may be if they don’t negotiate
in earnest. Again, the use of evidence in
mediation can be more powerful if one
doesn’t jump to the technicalities right away
unless the conversation naturally goes there.
Government
Lawyers
Conference 2015
Earlybird closes 24 July
qls.com.au/govlawyers2015
Friday 21 August 2015
Law Society House, Brisbane
6.5
The evidence will be more powerful if it is
presented using the following rules:
1. Present the evidence in a summarised,
succinct manner;
2. Utilise graphical illustrations of the key
findings and a range of possible outcomes;
3. If the evidence is technical in nature,
use a consulting expert to assist and
hold a dress rehearsal in advance of
the mediation with enough time to
adjust the presentation.
Mediation is no longer just a stage in the
litigation process, but often the key dispute
resolution mechanism – and this is increasingly
becoming understood by litigants and their
advisers. So we expect to see growing
sophistication from experts and those who
retain them, in ensuring that the way they
use expert witness evidence is optimised for
mediation. Those who don’t understand and
appreciate the differences will fail to make
the most effective use of the expertise at
their disposal, and will be less likely to achieve
a good outcome early.
Finally, a few more recommendations
when it comes to using expert witness
evidence in mediation:
1. Do a run through of your opening statement
with your experts ahead of the mediation
and hold back on content that will fall on
deaf ears, no matter how accurate and
convincing it would be in court;
2. Have the detail of your evidence handy, in an
easily digestible format, in case it is needed;
3. Understand whether the other side’s
evidence is from an independent expert who
has a duty to the court or from a consulting
expert who can instead act as an advocate.
Alternative dispute resolution
back to contents